COURT FILE NO.: FS-113127-00

DATE: 2012-04-26

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW APPEAL

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Marvin Kurz, counsel for the Applicant/Respondent on the Appeal

Applicant/Respondent on the Appeal

- and -

S.E.

Gabrielle Pop-Lazic, counsel for the Respondent/Appellant on the Appeal

Respondent/Appellant on the Appeal

HEARD: April 2 and 3, 2012

REASONS FOR JUDGMENT

[On appeal from the judgment of Maresca J.

dated June 29, 2011]

VAN MELLE J.

[1] This is an appeal brought by the Respondent mother, S.E. from an order of summary judgment of the Honourable Justice J.A. Maresca of the Ontario Court of Justice made on June 29, 2011 wherein she ordered that the child, C.M.C., born […], 2010 be made a Crown Ward with no access for the purposes of adoption.

[2] The parties to the original application were the Children’s Aid Society of the Region of Peel (“the Society) and the respondent mother S.E. and the respondent father C.C.. The respondent father failed to file an Answer and Plan of Care and was noted in default. He did not participate in this appeal.

OVERVIEW

[3] An application was brought by the Society on July 14, 2010 following its apprehension of C.M.C. on July 9, 2010. C.M.C. was placed in the temporary care and custody of the Society on July 14, 2010 with access for the parents subject to the Society’s supervision.

[4] On March 30, 2011 Justice Maresca found C.M.C. to be a child in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act pursuant to the summary judgment motion brought by the Society. The disposition order sought by the Society was adjourned to May 18, 2011 and then to June 9, 2011 with the final decision regarding the disposition order being rendered on June 29, 2011 along with the Reasons for the final ruling with respect to both the protection finding and the disposition order.

APPELLANT’S POSITION ON APPEAL

[5] Ms. S.E. submits that Justice Maresca erred in finding that the Society met its evidentiary burden of establishing that there was no genuine issue for trial and that the evidence advanced by the Society on the motion did not meet the necessary standards of credibility and reliability to ground such a finding.

[6] Ms. S.E. submits that the evidence produced in the context of the earlier Child Protection proceeding relating to C.A.E. was inadmissible hearsay in the context of the current proceeding. She submits that the results of the previous proceedings were properly before the court, however, the evidence used in reaching that result was not admissible to the extent that it violates the principles of issue estoppel.

[7] Further it is Ms. S.E.’s position that the hearsay evidence adduced by the Society did not meet the test of being credible on its face and as such could not be the basis of an order on a summary judgment motion. That to the extent that Justice Maresca relied on this evidence she erred in finding that there was no genuine issue for trial.

[8] Ms. S.E. takes the position that Justice Maresca relied heavily on the two year old Parenting Capacity Assessment that had been produced in the context of the earlier proceeding. Both parties produced letters from professionals which examined and drew conclusions regarding the findings contained in that report.

[9] Ms. S.E. submits that Justice Maresca misapprehended the evidence regarding the Parenting Capacity Assessment and the manner in which it was introduced in the prior proceedings and improperly drew a negative inference against Ms. S.E. and that Justice Maresca erred in weighing the credibility of Ms. S.E.’s evidence with respect to the assessment and in preferring the Society’s evidence.

RESPONDENT’S POSITION

[10] The Society opposes the Appeal. It takes the position that the appeal is without merit, that the decision of Justice Maresca is well reasoned and discloses no reversible errors in fact or in law. It takes the position that C.M.C. is a young infant under the age of one who has been in care since her apprehension on July 9, 2010 and is entitled to permanency planning which would be in her best interests.

FACTS

[11] Ms. S.E. is the mother of 5 children. The oldest two children M. and B. live with R.C. who is B.’s biological father; the third child, P.R., lives with his father; the fourth child, C.A.E., lives with his paternal grandparents pursuant to an order of the court made under the Child and Family Services Act and the fifth, C.M.C., was apprehended and made a Crown Ward without access for the purposes of adoption. This appeal concerns the order made with respect to C.M.C..

[12] Ms. S.E. no longer has a relationship with C.M.C.’s father and he has elected to not participate in any way in the proceedings with respect to C.M.C..

[13] C.M.C. was apprehended from the care of Ms. S.E. and Mr. C.C. on July 9, 2010 without a warrant under exigent circumstances. C.M.C. has been in the continuous care of the Society since that time. Following her apprehension, a without prejudice order was made placing her into the temporary care and custody of the Society.

[14] A temporary care and custody hearing with respect to C.M.C. was held before Justice J.C. Baldock on August 4, 2010 and the Ruling on Motion was released on August 10, 2010.

STANDARD OF REVIEW

[15] As cited with approval in Catholic Children's Aid Society of Hamilton v. C.R., 2009 CanLII 34047 (ON SCDC) at paragraph 10, the standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law.

[16] On appeal of an order of summary judgment, where an error of fact is alleged, the standard of review is less deferential than palpable overriding error, but is more deferential than correctness. The judge’s decision should be given due respect. The kind of error of fact that justifies intervention is one by which the motion judge disregarded, misapprehended or failed to appreciate relevant evidence; made a finding not reasonably support by the evidence; or drew an unreasonable inference from the evidence. Children’s Aid Society of the Region of Peel v. L.M. 2008 CanLII 22552 (ON SC), [2008] O.J. No. 1896.

ANALYSIS

[17] Given that the parties to this proceeding are not the same as the parties to the previous proceeding issue estoppel does not apply and indeed this argument was not vigorously pursued by Ms. S.E..

[18] During oral argument counsel for Ms. S.E. conceded that the Parenting Capacity Assessment by Dr. DeCunha was in fact admissible and the question is whether or not Justice Maresca placed too much reliance on the assessment and whether she erred in granting summary judgment in the face of conflicting evidence raised by Ms. S.E..

[19] Justice Maresca recognized the test that was to be used on a summary judgment motion. At paragraphs 23 to 29 she stated as follows:

[23] At issue in this case are two competing and critical goals: to ensure that summary judgment motions are successful only in the clearest of cases, particularly where the termination of parental rights is at stake; and to ensure that permanent plans for children in care are made without delay. The danger in determining that there is no genuine issue for trial is that the evidence upon which that determination is based has, in most cases, not been tested in the trial process. The Court must scrutinize the evidence very carefully, especially given the fact that the Society argues their case on the basis of a summary judgment motion. Children’s Aid Society of Hamilton v. M.N. and H.S.N 2007 CanLII 13503 (ON SC), [2007], O.J. No. 1526 (Ont. S,C,J. Family Court). The Court cannot make findings of credibility or weigh the evidence. Children’s Aid Society of Nippissing v. Marielle M. 2000 CanLII 22922 (ON SC), [2000] O.J. No. 2541 (Ont. S.C.) It must consider the affidavit evidence filed by the parties in determining whether the Society has demonstrated that there is no real issue to be tried. Children’s Aid Society of Toronto v. Cynthia H. v. Hassan S. [2004] O.J. No. 40084 (Ont. C.J.) The evidence filed in defence of the motion must not disclose a triable issue. Children’s Aid Society of Toronto v. Kathleen T. and Charles W. 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.) In cases where the child before the Court is the last in a series of children who are being parented by someone other than the responding parent, past parenting evidence takes on great significance. Where the reasons why older siblings are not in the responding parent’s care are consistent over time, the need for the parent to demonstrate significant change is great. Children’s Aid Society of Niagara Region v. D.P. and S.B. (No.3), 2003 CanLII 1932 (ON SC), [2003] O.J. No. 619, (Ont. Fam. Ct.); Catholic Children’s Aid Society of Toronto v. C.S., 2010 ONCJ 656.

[24] In order to be successful on its motion for summary judgment, the Society must discharge the onus of demonstrating that there is no genuine issue for trial. In responding, the parent must put her best case forward; it is insufficient to simply deny the assertions made by the Society. Children’s Aid Society of Toronto v. M.A. 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.) Similarly, it is not sufficient that a parent present a plan without addressing the concerns raised, particularly when there is clear evidence of a pattern of concerning behaviour over time. Children’s Aid Society v. Robin H. and Michael N. 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)

[25] In cases where instability and poor judgment are significant concerns, the responding parent must be able to point to evidence of stability and good decision-making. Where a pattern of behaviour has developed that is of concern, a parent must show evidence that the pattern has been broken, and that she has developed new ways of organizing her life and parenting her children. Children’s Aid Society v. Robin H. and Michael N., supra.

[26] The stark facts of this case are that Ms. E. has had five children. None of these children reside with her. The eldest two reside with their father. While he is supportive of Ms. E.’s parenting there is no evidence from him to confirm the contention of Ms. E. and Mr. L. that he has agreed to a shared parenting arrangement with them. According to Ms. E., the third child was born out of a rape. Despite this fact, Ms. E. consented to that man having custody of the child. The fourth child was apprehended by the York CAS, and a final order placing him with his grandparents was made by the Court at a hearing which Ms. E. chose not to attend. Now Baby C. has also been removed by the Court from Ms. E’s care. Ms. E. was not able to maintain consistent contact with Baby C. Over the course of the last 11 months and in fact did not see her at all for four of those months, from October 2010 to February 2011.

[27] Ms. E. has been unable to maintain consistency in any significant area of her life: she has moved frequently; she has had little stability in maintaining employment; her education was interrupted in Grade 11; she has had a series of partners, friends, and roommates with whom she has experienced brief and volatile relationships. Her plan for caring for Baby C. In the 11 months of her life has changed several times. The parenting capacity assessment of Dr. DeCunha is thorough and detailed. Ms. E. had an opportunity to test that assessment when her fourth child was before the Court, and chose not to do so. The critique of the assessment, from Mr. Hartwell, was based almost solely on information provided to him by Ms. E. Mr. Hartwell criticized Dr. DeCunha for relying on a measure assessing personality in which Ms. E.’s high scores on a subscale made the results unreliable. What is clear from Dr. DeCunha’s’ report is that she recognized that that particular measure was of questionable value, and that she administered a wide range of other psychological, cognitive and projective testing in coming to her conclusions. She assessed Ms. E. over the course of five sessions, and observed her with the fourth child on two occasions.

[28] Even Dr. Marek, whose report was the most favourable to Ms. E., concluded that it would only be with “parent coaching” and “appropriate guidance” – things that have been offered unsuccessfully to Ms. E. -- that she “can develop” the necessary parenting skills.

[20] Justice Maresca went on to say:

[29] Ms. E.’s affidavit materials filed in response to the Society’s motion for summary judgment do not seriously address any of the concerns raised by the Society, Dr. DeCunha, or the Supervised Access report. Both affidavits are replete with denials, and they both place the blame for any criticized behaviour on someone other than herself. The plan put forward by Ms. E. and Mr. L. is very appropriate on paper; the difficulty is that none of it has been tested. There is nothing in Ms. E.’s history or her own materials that demonstrates that this plan is viable. On the contrary, the plan was hastily conceived, with little attention paid to the child herself. Had this plan been put forward shortly after Baby C.’s birth, credence may have been given to it; as it is, it is nothing but dreams and promises.

[21] There is no question that Ms. S.E. did not appear at the hearing where the York Children’s Aid Society obtained a final custody order in favour of the paternal grandparents relating to C.A.E.. At that hearing on November 15, 2010, in Ms. S.E.’s absence, Justice Hughes found that there was no issue for trial. She held that Ms. S.E. failed to file a plausible Plan of Care for the child and that the York Society did not have a working phone number or a correct address for Ms. S.E..

[22] Justice Hughes found that C.A.E. was a child in need of protection and could not be returned to his mother’s care and that a supervision order could not sufficiently reduce the current risk of harm. She found that Ms. S.E. was:

1. unable to sustain a stable home for the child,
2. unable to sustain sufficient financial support to provide the child the necessaries of life,
3. unable to maintain consistent motivation to address the concerns raised by the Society, to accept assistance, to be truthful, or to cooperate,
4. unable to make access to the child a priority; unable to propose and maintain a consistent access schedule despite scheduling accommodations to meet her other commitments, and financial assistance,
5. unable to propose and maintain a consistent plan of care and follow through with it,
6. unable to meet the needs of her son based on her level of mental (self-regulation) and emotional functioning as determined and particularized in the parenting capacity assessment completed by Dr. DeCunha.

[23] Of note is the fact that C.A.E. was given into the care of his paternal grandparents.

[24] In contrast to the lack of engagement in those earlier proceedings, there is also no question that Ms. S.E. actively participated in all the court hearings regarding C.M.C.. She filed documents and attended court on all occasions. Ms. S.E. filed two affidavits (March 25, 2011 and May 12, 2011) with respect to the proceedings of the Peel Children’s Aid Society. Her evidence in the case at bar, which deposes facts relevant to her current parenting ability in contrast to the historical evidence, has not been subject to the scrutiny of a trial. Ms. S.E. challenges the reliability of Dr. DeCunha’s capacity assessment, in which Dr. DeCunha referenced a diagnosis made 18 years ago when Ms. S.E. was 14 years old.

[25] In her March 25^th^ affidavit Ms. S.E. deposed at paragraph 11:

With respect to the parenting capacity assessment of Dr. DeCunha I submit it is flawed and should not be relied upon in this matter. Dr. DeCunha relied upon an erroneous diagnosis of Dr. Papatheodorou in 1992 as a ground of my parenting capacity.

[26] Ms. S.E.’s challenge to the Parenting Capacity Assessment is supported in the same doctor’s letter which specifically notes his earlier diagnosis “would have very little relevance to her present situation and her abilities.” Ms. S.E. in her affidavit points to this material unreliability. She offers details which, if found to be true at trial, could indicate her concerning past pattern of behaviour has been broken and, as expressed in the C.A.S. v. Robin H. et al. a decision referenced by Justice Maresca in paragraph [25] of her Reasons, that: “she has developed new ways of organizing her life and parenting...”

[27] Mr. Kurz, on behalf of the Society, submitted that Dr. DeCunha had placed little reliance on Dr. Papatheodorou’s findings in 1992. Yet Dr. DeCunha wrote in the Parenting Capacity Assessment under the heading Document Review:

An extensive document list was provided and reviewed (appended), however only documents referenced for purposed [sic] of this assessment are reviewed formally.

[28] She then reviewed three notes, July 20, 1992, December 14, 1992 and August 3, 1993 from Sunnybrook Health Science Center, Psychiatric Consultation, G. Papatheodorou, M.D., Adolescent Psychiatry. It certainly appears from this review that she did in fact rely on the consultation notes of Dr. Papatheodorou when conducting the Parenting Capacity Assessment.

[29] Ms. S.E. also arranged a mental health assessment with a Dr. Marek. Dr. Marek’s assessment was dated May 27, 2011 and was available to Justice Maresca at the hearing on the summary judgment motion. In fact, the motion had been adjourned to allow Dr. Marek to complete his assessment. The assessment by Dr. Marek was not a Parenting Capacity Assessment; it was an assessment of Ms. S.E. in accordance with a Peel Children’s Aid Plan of Care, dated October 4, 2010 which stated: “Ms. S.E. to complete a psychological assessment to assess her anxiety and attend appointments as scheduled by the assessor.”

[30] According to Dr. Marek, Ms. S.E. attended the appointments, unless she had previously rescheduled them, and arrived on time. She was compliant with participating in all testing procedures. His report offers evidence of a positive change in Ms. S.E.’s pattern of behaviour which is supported by his observations and personality testing.

[31] Dr. Marek stated at page 4:

On the two measures of personality, all scales are within the normal range. There was some indication, as mentioned previously, that Ms. S.E. was guarded in her responses. There was no indication of psychopathology, emotional or mental disorders. No anxiety was evident in the profile.

In conclusion, on the basis of the test results, there is nothing to suggest instability, emotional lability, anxiety, nor a thinking or mood disorder. Further, there is nothing in the test results that would suggest poor judgment, impulsivity or irrational thinking.

With respect to the documents reviewed which included the lengthy assessment of Dr. DeCunha, a review of documents and letters by Dr. Vince Murphy, psychologist, as well as the observations of George Hartwell (counsellor to S.E.) as a result of eight hours of therapy with her, present very opposite views of Ms. S.E.. On the one hand, the CAS material presents Ms. S.E. as emotionally labile, aggressive, confrontational, argumentative, lacking insight, exercising poor judgment and unstable. On the other hand, Mr. Hartwell and others that have worked with Ms. S.E. in a variety of settings, i.e., Crime & Trauma Scene Cleaners, Inc., The Open Door (Christian Drop-in and Information Centre) have a very different viewpoint. I am of the opinion that given all the information and history to date as well as the pressure that has been brought to bear on Ms. S.E. by the CAS, has brought out the stress side of her personality. It is not surprising that she can at times be abrupt, anxious, worried, tangential in her discussions, as well as not as sensitive when in the presence of her child, knowing that every move and word is being carefully documented by the CAS. During the assessment, there were periods when Ms. S.E. became extremely emotional and teary in discussing the possibility that she may never see her child again.

[32] He concluded his report by saying:

I am of the opinion that Ms. S.E. requires a parenting coach and sufficient positive recognition and affirmation of the parenting skills that she does possess. I believe that when she is under significantly less stress and with the appropriate guidance, can develop the consistent parenting skills that she may require to raise her baby.

[33] Justice Maresca dealt with Dr. Marek’s assessment at paragraph 28 of her decision and said: Even Dr. Marek, whose report was the most favourable to Ms. E., concluded that it would only be with “parent coaching” and “appropriate guidance” – things that have been offered unsuccessfully to Ms. E. – that she “can develop” the necessary parenting skills. She does not deal with the positive aspects of the report in support of Ms. S.E.’s position.

[34] In addition to Ms. S.E.’s affidavits, an affidavit from J.L. was submitted on her behalf. Mr. J.L. deposed to the fact that he was now in a relationship with Ms. S.E. and intended to marry her in June of 2012. Mr. J.L. put forward a plan of care for C.M.C.. Justice Maresca said of the Plan of Care:

[29] ... The plan put forward by Ms. E. And Mr. L. is very appropriate on paper; the difficulty is that none of it has been tested. There is nothing in Ms. E.’s history or her own materials that demonstrates that this plan is viable. On the contrary, the plan was hastily conceived, with little attention paid to the child herself. Had this plan been put forward shortly after Baby C.’s birth, credence may have been given to it; as it is, it is nothing but dreams and promises.

[35] Justice Maresca gave no credence to the Plan put forward by Mr. J.L.. She did not explain her outright rejection of that plan, other than to suggest that it was formulated too late. According to his affidavit, Mr. J.L. owns his own home where he lives with his two sons. He is employed on a full-time basis and has strong ties to his community. The Society neglected to investigate the Plan, claiming that time was running out, and that the child was already eleven months old. However time had not yet run out and an investigation was warranted in circumstances in which the Society was challenging the Plan’s efficacy. This obvious weakness in the evidence presented by the Society was not taken into account by Justice Maresca’s rejection of the Plan of Care presented on behalf of Ms. S.E..

[36] With the greatest of respect, Justice Maresca erred in her analysis of the evidence. While she was aware of the test that had to be met on a summary judgment motion, she erred in finding that there was sufficient evidence upon which to grant such a motion. In my view, this amounts to an error of law for which the standard of review is correctness. Justice Maresca was not correct in dismissing out of hand the evidence presented by Ms. S.E.. Given the evidence that was adduced by Ms. S.E. in support of her request that summary judgment not be granted, there was enough conflicting evidence to require a trial. Justice Maresca disregarded the conflicting evidence adduced by Ms. S.E. and failed to give it sufficient weight.

[37] Although Justice Maresca was entitled to rely upon the Parenting Capacity Assessment by Dr. DeCunha, she was not entitled to prefer it to all evidence presented.

[38] In Kawartha-Haliburton Children’s Aid Society v. C.(D.) 2002 CanLII 53209 (ON SC), 2002 CarswellOnt 3304, 32 R.F.L. (5^th^) 362, Justice Nelson said at paragraph 18 and following:

Although the purpose of subsection 50(1) of the Act is to ensure that the court hearing a protection matter has before it information of a party’s past conduct towards children, this should not involve a detailed review of all of the evidence previously taken into account. This is especially so, where, as here, the judge hearing the earlier trial wrote a careful and detailed decision and made findings of fact with respect to the mother’s mental health. The earlier decision forms the backdrop necessary from which to measure change. To allow admission of the same evidence that has already been dealt with would be to invite relitigation of many of the points previously raised.

In addition, I am also concerned about fair process. This was an issue that concerned Judge Steinberg in the case of Children’s Aid Society of Hamilton-Wentworth v. D.M. and C.M., supra. Should I allow the society to place into evidence all of the reports, affidavits and transcripts it requests, what happens at that point? All of these many facts (except for the reasons of decision of Justice Olah) cannot simply be accepted by the court without allowing the mother’s counsel the opportunity to conduct a full cross-examination on the facts so raised. It would be unfair to expect that the facts in the documents admitted into evidence in the manner requested should be accepted as truth, without allowing the mother the right to cross-examine. If cross-examination is allowed, as it would be, we then run into the very problem raised in the decision in Catholic Children’s Aid Society of Toronto v. Virginia W. and Alberto A.-C. (2001), supra — that is, the risk that a different conclusion might be made on any particular point. The trial, as well, would be unduly prolonged.

Although clause 50 (1)(b) casts a wide net, I do believe its effect can and should be limited in cases such as this one where there have been previous findings made. I am mindful, however, that, in a protection proceeding, because a child’s life may be at stake, a strict technical approach should never limit the court from hearing and considering any important facts, in any form, that have not previously come to the attention of the court. Although each party to a protection case may be prevented or estopped, if you will, from raising points that were raised at the first trial, the court, given its wide mandate of protecting children, may need to hear certain facts that were raised at the earlier trial. The approach, however, of admitting all “evidence” from the first trial, is not the way to go about it. The society should be required to be far more selective than that.

[39] In support of its position that the appeal should be dismissed, Mr. Kurz on behalf of the Society relied heavily on Catholic Children’s Aid Society v. C.R. supra, a decision of the Divisional Court. In that case Justice Low, writing on behalf of herself and Justices Karakatsanis and van Rensburg dismissed an appeal where Justice Pazaratz of the Superior Court of Justice had granted summary judgment in favour of the Catholic Children’s Aid Society. He declared the child a crown ward, and placed him in the care of the Society without access to his biological parents (the Appellants).

[40] In support of the motion for summary judgment the Society in that case filed affidavits to which were appended a Parenting Capacity Assessment by Peter Sutton, an assessment by Nicole Walton-Allen, medical reports and other documents. Based upon the contents of the affidavits and reports, Pazaratz J. found that both appellants were so constrained by their own problems – and their conflictual and unstable relationship with one another – that they were unable to parent, or even be entrusted with supervised access.

[41] The Divisional Court found that the Appellants did not do anything to challenge the facts underlying the opinions expressed in the parenting capacity assessments, or to suggest that there had been a change in parenting capacity subsequent to the time period during which Peter Sutton did his assessment in relation to the appellants’ ability to parent.

[42] The case at bar is clearly distinguishable from the Catholic Children’s Aid Society v. C.R. supra. Ms. S.E. did take active steps to challenge the Parenting Capacity Assessment. She had a letter from Dr. Papatheodorou, two letters from Mr. Hartwell and a psychological assessment from Dr. Marek. She also had an affidavit from Mr. J.L. with an updated Plan of Care.

[43] All of these pieces of evidence materially challenge the evidence of the Parenting Capacity Assessment.

[44] The appeal is allowed and a trial is ordered. I am hopeful that given that the trial involves the future of a very young child, the trial can be expedited.

[45] At the argument of the appeal, counsel agreed that if I allowed the appeal, I should look at additional material that had been filed by both sides. Despite the information contained in the additional material, I am of the view that C.M.C. should not be moved from her current placement pending a trial.

[46] As I stated earlier, I am hopeful that an expedited trial can take place with a view to finalizing matters for C.M.C. as quickly as possible.

___________________________

VAN MELLE J.

Released: April 26, 2012